The owners of 22 Lenox Road are appealing a Planning Board decision not to allow a two-family home to be built in addition to the single-family home already on the lot. The board was notified of the appeal in a letter from Rockingham Superior Court dated June 18. A merits hearing is scheduled for Oct. 7 at the court in Brentwood.

Timothy Winings of TJW Survey first presented the plan, and a lot line adjustment, to the board at its March 6 meeting. The board first heard the application for the lot line adjustment, which would bring 20 Lenox Road into compliance with setback requirements. The board voted 8-1 to approve the lot line adjustment, with Town Administrator John Anderson the dissenting vote.

In the discussion on the site plan, Anderson objected to having three homes on the same septic system, and member Randall Chase objected to a lack of a sprinkler system. The board reconsidered the vote on the lot line adjustment, with the second vote 7-2, and tabled the site plan review to the April 3 meeting. A site walk took place April 20. The April meeting was continued to May 15.

At the May 15 meeting, Anderson restated his concerns, noting that the project could cost the town $70,000 to $80,000 per year to educate any children in the duplexes, and would bring in $10,000 maximum for taxes.
Chase objected to the request for above-ground utilities, noting, “I don’t think above-ground utilities are a hardship.”

Member Darrell Park said the duplex would detract from the “history, integrity and character” of the neighborhood, and Chase said, “I am troubled by the plan as a whole.” Approval of the application failed, with 3 votes yes and 6 votes no.

Attorney Patricia Panciocco, who is representing 22 Lenox, cited several reasons for the appeal, including:
• Code Enforcement Officer Bob Mackey confirmed that Derry had several lots used as multifamily residential, with more than one building on the lot.

• Although Section 165-8 of the ordinance states that “only one residential building or dwelling shall be situated on a lot,” the Planning Board has routinely approved more than one dwelling on a lot, according to Panciocco.
• The owners are asking for only two new units, though the property qualifies for up to 10 under the MHDR (Medium High Density Residential) regulations.
• The owner invested $10,000 to install water and sewer improvements, and paid Public Service Company of New Hampshire (PSNH) $2,673 to install an additional pole and upgrade the electric units.
• The project passed the Technical Review Committee.
• Abutters at the April 3 meeting supported the project.
• The board reconsidered the lot line adjustment and approved it, 4-2.
• Panciocco charges there is evidence of “bias and prejudice” among board members, and that members who cannot act impartially should recuse themselves.
• “Planning boards have no authority to enforce or administer zoning,” Panciocco wrote in her appeal, “or to reverse a zoning official’s decision ad hoc.”
• She maintained that Code Enforcement determined the owner’s proposal was permitted in the MHDR district on Feb. 13.
• She cited examples throughout town, including 116 East Broadway and 16 Crescent, with several buildings on a single lot.

Planning Director George Sioras declined to comment, saying, “The only thing I can say is that the suit has been filed to appeal the decision of May 15.” In the hearing Oct. 7, oral arguments will be presented by both sides, Sioras said. “This is not a trial,” he emphasized, “it is a hearing. There will be 15 minutes allotted to each side, and then the judge will make a decision.”

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